Filing# 86562936 E-Filed 03/18/2019 03:39:59 PM

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION "X" CASE NO.: 2016CF005507AXX STATE OF FLORIDA

v.

NOUMAN KHAN RAJA, Defendant.

~~~~~~~~~~~~-I RENEWED MOTION FOR JUDGMENT OF ACQUITTAL, MOTION FOR A NEW TRIAL, AND MOTION FOR ARREST OF JUDGMENT

The defendant Nauman Raja moves for a new trial pursuant to Rule 3.600, Fla. R. Crim.

P., renews his motion for judgment of acquittal pursuant to Rule 3.380, Fla. R. Crim. P., and

moves for an arrest ofjudgment pursuant to Rule 3.610, Fla. R. Crim. P., stating as follows:

1. This Court should grant a new trial because:

a. the verdict is contrary to law or the weight ofthe evidence;

b. the court erred in the decision of matters of law arising before and during the

course ofthe trial;

c. the court erroneously instructed the jury on matters of law and refused to give a

proper instruction requested by the defendant; and

d. for any other cause not due to the defendant's own fault, the defendant did not

receive a fair and impartial trial.

2. This Court should grant a judgment of acquittal as to both counts because the evidence

is insufficient to warrant conviction on either count.

3. This Court should arrest judgment because:

FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 03/18/2019 03:39:59 PM (a) the indictment or information on which the defendant was tried is so defective that it will not support a judgment of conviction; and

(b) the defendant was convicted of an offense for which the defendant could not be

convicted under the indictment or information.

ARGUMENT.

THE MOTION FOR A NEW TRIAL MUST BE GRANTED.

Failure to instruct the jury on justifiable use of deadly force by a law enforcement officer requires a new trial.

The defense sought an instruction on justifiable use of force by a law enforcement officer,

including a special instruction modified to provide the jury with a definition of"arrest." This Court

denied both the standard and special instruction in what is plainly reversible error.

Florida law requires the trial court to instruct the jury on the theory of defense. This

principle could not be more fundamental to a fair trial. The Fourth District recounts the law:

Generally, " '[a] criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.' "Quick v. State, 46 So.3d 1159, 1160 (Fla. 4th DCA 2010) (quoting Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006)). The defendant is entitled to a special jury instruction if the following three elements are satisfied: (1) the special instruction was supported by the evidence; (2) the standard instruction did not cover the theory of defense; and (3) the special instruction was a correct statement ofthe law and not misleading or confusing. Dorsey v. State, 74 So.3d 521, 526 (Fla. 4th DCA 2011) (citing Stephens v. State, 787 So.2d 747, 756 (Fla.2001)).

Funchess v. State, 126 So. 3d 1107, 1110 (4th DCA 2012). Denial of the standard instruction on

use of force by a law enforcement officer is the most obvious error. The evidence Officer Raja was

engaged in an arrest at the time of the shooting is not "weak or flimsy," but compelling. In fact, the evidence ofan arrest is almost word for word described by the Fourth District in Peraza, as we

apprised the Court when seeking the instruction:

2 While we conclude the finding offact here that the officer was responding to an emergency and investigating a disturbance was supported by competent substantial evidence, we also recognize an argument could be made that the officer here was in fact making an arrest. As the circuit court found, after the officer and his sergeant spotted the man about twenty yards from them, both the officer and the sergeant shouted the commands "Stop!", "Police!", and "Drop the weapon!" The officer then closed his distance from the man to approximately five to ten feet, and continued to command the man to "stop" and "drop the weapon." It is reasonable to conclude that the officer was taking these actions to make an arrest, and not merely to investigate the man's intentions.

State v. Peraza, 226 So. 3d 937, 946 (Fla. 4th DCA 2017), affd., State v. Peraza, 259 So. 3d 728 (Fla. 2018).

As the evidence showed at trial, Officer Raja used similar words when approaching Mr.

Jones. The defense in this case was justifiable use offorce. It was reversible error for this Court to

decline to give the standard instruction on a law enforcement officer's use of force. 1 Refusal to

give the defense requested special instruction on justifiable use of force by a law enforcement

officer, or some version of it, was also reversible error.

The defense sought the following special instruction:

JUSTIFIABLE USE OF FORCE

BYLAW ENFORCEMENT OFFICER

1 The standard instruction reads as follows:

3.6(h) JUSTIFIABLE USE OF FORCE BYLAW ENFORCEMENT OFFICER

In making an arrest of a felon. § 776.05, Fla. Stat. Give if applicable.

A law enforcement officer, or any person [he] [she] has summoned or directed to assist [him] [her], need not retreat from or stop efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force that [he] [she] reasonably believes necessary to defend [himself] [herself] or another from bodily harm while making the arrest. That force is also justifiable when necessarily used:

1. in retaking a felon who has escaped or

2. in arresting a felon who is fleeing from justice.

3 A law enforcement officer need not retreat from or stop efforts to make a lawful arrest or carry out any other execution of a legal duty because of resistance or threatened resistance to the arrest or other execution of a legal duty. The officer is justified in the use ofany force that he reasonably believes necessary to defend himselfor another from bodily harm while making the arrest or executing a legal duty.

An arrest can be shown by shouted commands from the officer such as to stop, drop, or similar commands. The words "you're under arrest" or the like need not be spoken by the officer for an arrest to take place.

I now instruct you Nouman Raja was a law enforcement officer at the time of the events in this case.

The defense requested instruction meets all ofthe criteria necessary to require it be read to the jury. It is: (1) supported by the evidence; (2) the standard instruction did not cover the theory

of defense; and (3) it was a correct statement of the law and not misleading or confusing. It was

error to decline to give it.

The Court improperly instructed the jury on Officer Raja engaging in the initial provocation.

The state sought the initial provocation instruction over defense objection, and this Court

granted it. A person who reasonably believes he faces a threat of imminent death or great bodily harm has the right to use deadly force in self-defense, Fla. Stat. § 776.012(2), unless he provoked the threat by committing an independent forcible felony or initiating an assault. Fla. Stat. §

776.041; Martinez v. State, 981 So. 2d 449, 452 (Fla. 2008). Non-assaultive conduct prior to the

deadly confrontation, however negligent or wrongful, is not sufficient to deprive a person of the right to self-defense. Though there was no evidence to support the instruction, this Court

improperly read it to the jury, completely undermining the defense ofjustifiable use of force. A new trial is required.

The Trial Court erred in failing to enter an acquittal as to either Manslaughter or Attempted First Degree Murder.

4 Under settled Florida law, "only one homicide conviction and sentence may be imposed

for a single death." Houser v. State, 474 So. 2d 1193, 1196 (Fla.1985). "[T]he single homicide rule

... affords a second tier ofdouble jeopardy protection." McCullough v. State, 230 So. 3d 586, 592

(Fla. 2d DCA 2017). It applies both to attempts and completed killings, and an injury merges with the death: "The single homicide rule 'is based on notions of fundamental fairness which recognize the inequity that inheres in multiple punishments for a singular killing.' Gordon v. State, 780 So.

2d 17, 25 (Fla. 2001 ), receded from on other grounds by Valdes v. State, 3 So. 3d 1067 (Fla. 2009).

"[P]hysical injury and physical injury causing death, merge into one and it is rationally defensible to conclude that the legislature did not intend to impose cumulative punishments." Id. (quoting

Carawan v. State, 515 So. 2d 161, 173 (Fla. 1987) (Shaw, J., dissenting))." Marsh v. State, 253

So. 3d 674, 677 (Fla. 2d DCA 2018).

In Williams v. State, 90 So. 3d 931 (Fla. pt DCA 2012), the Court found improper

convictions for both attempted premeditated and attempted felony murder. In Williams, an

argument led to the appellant shooting three times at the complainant as he ran away, pausing, then

pursuing him and firing four or five more shots, one of which struck him in the back. The Court reversed the conviction for attempted felony murder, finding the dual convictions precluded by the

doctrine of merger, even if not by double jeopardy. It first found the event was a single episode,

even though there was a pause between volleys, and rejected the state argument that each bullet

fired was a distinct act. So it is with the case at bar.

"To determine whether the offenses occurred in one criminal episode, a court must

consider 'whether there are multiple victims, whether the offenses occurred in multiple locations,

and whether there has been a 'temporal break' between offenses." Williams, 90 So. 3d at 933

( cleaned up). The shooting in this case involved a single decedent, in a single location, without a

5 sufficient temporal break between the charged offenses. As in Williams, here there was a brief

pause between two volleys, and as in Williams, the shooting in this case is a single episode for jeopardy and merger purposes. The Williams Court also found each count did not result from a

distinct act: "To determine whether acts are "distinct," factors to consider include whether there was: 1) a temporal break between the acts; 2) intervening acts; 3) a change in location between the

acts; or 4) whether a new criminal intent was formed." Ibid. Again, neither the pause between volleys nor the continued pursuit qualified as distinct acts.

The state charging an attempt- first degree murder- and a completed act- manslaughter­

does not avoid the jeopardy, merger, and single homicide rules. The attempt merges into the

completed act, and cannot form the basis of a second count in a homicide prosecution. This Court

should have acquitted on one of the counts.

The Court erred in its denial of the Frye hearing regarding Dr. Juste and its prohibition of the defense calling additional forensic pathologists.

Dr. Juste's opinions were based on scientifically unreliable premises rejected by the

forensic scientific community. Dr. Juste's opinion was that the fatal shot that struck Corey Jones'

and caused damage to his heart, aorta and pulmonary artery would cause him immediate

incapacitation and that he would thus drop immediately, or within a few yards of where he was when he received this wound.

All ofthe medical literature and all ofthe other experts who have provided opinions in this

case say it is established medicine and science that even with complete destruction of the heart, a

person would have at a minimum of 10 seconds during which they could still run. This would mean contrary to Dr. Juste's opinion, Corey Jones was likely not shot where he was found. Even the two experts hired by the State, Dr. Thogmartin and Dr. Nelson, agree Dr. Juste's opinion is

scientifically unreliable and cannot be supported. Dr; Juste's opinion does not meet the Frye

6 standard for scientific evidence. In addition, her opinion is new and novel in that it is not supported

by any medical literature or knowledge.

In Delisle v. Crane Co., SC16-2182, 2018 WL 5075302 (Oct. 15, 2018), the Florida

Supreme Court rejected the legislature's attempted adoption of the standard for admitting expert

opinion set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). That

Court found section 90.702, Fla. Stat., unconstitutionally conflicted with its own rule adopting

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), as the method of testing the admissibility of

some expert testimony. The Court describes Frye's reasoning:

that the line between when a scientific discovery or principle crosses from experimental to demonstrable is indiscernible so that courts would do better "admitting expert testimony deduced from a well-recognized scientific principle or discovery." Id. at 1014. Further, the Court explained, "the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." Id. This rule-that expert testimony should be deduced from generally accepted scientific principles-has been the standard in Florida cases and, today, we reaffirm that it is still the standard.

Delisle, slip op. at 4. As the Florida Supreme Court had explained years ago:

The underlying theory for this rule is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.

Stokes v. State, 548 So.2d 188, 193-94 (Fla.1989).

The Florida Supreme Court held in Ramirez v. State, 810 So. 2d 836 (Fla. 2001) that when

applying Frye, a court is not required to determine the evidence is "generally accepted" on the

basis of a mere "nose count" of experts in the field. Id. at 844. Instead, the court "may peruse

disparate sources-e.g., expert testimony, scientific and legal publications, and judicial opinions-

and decide for itself whether the theory in issue has been 'sufficiently tested and accepted by the relevant scientific community.' "Id. (footnote omitted) (quoting Brim, 695 So.2d at 272). That is,

7 "[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific

principles is inadequate to establish its admissibility ifthe witness's application ofthese principles

is untested and lacks indicia of acceptability." Id. Finding knife mark expert opinion evidence

"scientifically unreliable" and so inadmissible under Frye, the Ramirez court also pointed out other

evidentiary rules apply to expert testimony as well to test its "legal reliability." Thus, "[a]ll

evidence, including expert testimony, is subject to the requirements of sections 90.401, 90.402,

and 90.403, which address relevancy and reliability." Id. at 842.

Under Frye, the courts have excluded a number of experts and expert opinions, such as

"child sexual abuse accommodation syndrome," Hadden v. State, 690 So. 2d 573 (Fla. 1997), sex

offender profile evidence, Flanagan v. State, 625 So.2d 827 (Fla. 1993), and others. This Court

should exclude the testimony of Dr. Juste for similar reasons, as well as its "legal unreliability" under section 90.403, Florida Statutes (2019), because its probative value is 'substantially

outweighed by the danger of unfair prejudice, confusion of issues [or] misleading the jury,"' and the state's expert in this case is not relying on facts or data "of a type reasonably relied upon by

experts in the subject to support the opinion expressed." § 90.704.

This Court did grant the state's motion to prohibit the defense from calling more than one

forensic medical expert and referring to the fact the state had consulted with the expert who testified for the defense. These rulings, too, were error. "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S.

284, 302 (1973). "Any evidence that tends to support the defendant's theory of defense is

admissible, and it is error to exclude it. Vannierv. State, 714 So. 2d 470, 472 (Fla. 4th DCA 1998)."

Dean v. State, 916 So. 2d 962, 964 (Fla. 4th DCA 2006). As the Florida Supreme Court has held,

8 "where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant's

guilt, it is error to deny its admission." Rivera v. State, 561 So.2d 536, 539 (Fla.1990).

Ignoring any reference to these fundamental constitutional principles, the state sought to

exclude defense evidence here, arguing more than one medical expert is cumulative under Section

90.403, Fla. Stat. For its argument, the state relied primarily on Millien v. State, 766 So.2d 475

(Fla. 4th DCA 2000). But Millien distinguishes itself. There, as an alternative basis for its ruling the proffered evidence was excludable as cumulative, the Court noted Millien had already been

allowed to present "several witnesses to prove his '"conspiracy theory."' Id. at 476 and 477. (e.s.).

While it distinguishes Vannier based on what it describes as the categorical exclusion of evidence there, it is notable Millien has not been cited for its cumulative evidence holding by any other court

since the case was decided nineteen years ago.

The Florida Supreme Court recently addressed section 90.403, Fla. Stat., in the course of

approving presentation of multiple experts in a medical malpractice case, in Gutierrez v. Vargas,

239 So.3d 615 (Fla. 2018). The Court began by noting even cumulative evidence is not necessarily

excludable:

As the rule suggests, cumulativeness alone is not sufficient grounds to exclude evidence: the probative value ofthe evidence must be "substantially outweighed" by the danger of "needless presentation of cumulative evidence."§ 90.403, Fla. Stat. (2017) (emphasis added); see also Delgardo v. Allstate Ins. Co., 731 So.2d 11, 16 (Fla. 4th DCA 1999) ("The real issue facing the trial court was whether a witness will offer testimony that unnecessarily duplicates the testimony of another witness, in which case the trial court has discretion to limit or exclude it."). Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence. Woodson, 166 So.3d at 233.

Gutierrez, 239 So. 3d at 625. The Court distinguished excludable cumulative testimony from

admissible confirmatory testimony, Id. at 625-26, and the fact different experts reach the same

conclusion does not necessarily make their testimony cumulative if there are some different facts

9 or evidence each relies upon: "This explanation illustrates the difference between cumulative testimony, which courts have discretion to exclude, and relevant confirmatory testimony, which they do not." Id. at 626. See also Williams v. State, 397 So.2d 1049 (4th DCA 1981)(no error in

permitting state to present multiple fingerprint experts).

In Jacobs v. State, 962 So. 2d 934 (4th DCA 2007), the Fourth District reviewed a case in which the defense was insanity, and where the trial court excluded hundreds of telephone calls, a handwritten promissory note (IOU) from the victim's lover to the victim with a note on the reverse

side which was written six days prior to the shooting, refused to permit the defendant's daughter to testify to finding the IOU, and excluded evidence the victim and her lover recently opening a joint postal box and joint bank account. The trial court excluded the evidence as irrelevant and

cumulative. Id. at 936. The Fourth District reversed, relying on Vannier and Rivera, reiterating:

"[r Jegardless of how the trial court may view the evidence, it should be admitted as relevant if it tends to prove or support the theory ofdefense. Dean v. State, 916 So.2d 962 (Fla. 4th DCA 2005)."

962 So. 2d at 936.

In this case, the defendant previously moved to exclude Dr. Juste's testimony under Frye,

but this Court denied the motion without a hearing. It was only through multiple forensic experts the defense would have been able to show the jury Dr. Juste's opinion is so far out of the mainstream it is unreliable. The multiple medical examiner testimony is surely not "needless," and

is confirmatory, not cumulative. This Court committed reversible error in limiting the defense testimony.

This Court also reversibly erred in granting the state motion to forbid the defense from

eliciting testimony two of the medical examiners that they were initially contacted by the state. It

argued: "[a]s was made clear in their respective depositions, Drs. Thogmartin and Nelson were

10 both initially contacted by an investigator at the State Attorney's Office and asked some questions

about the shooting, which they answered through written ( and disclosed) reports. Neither signed a

formal agreement with the State, and neither sent an invoice to, or received payment from, the

State." As the state conceded, the Fourth District permits such a reference. In Sun Charm Ranch,

Inc. v. City ofOrlando, 407 So.2d 938 (Fla. 5th DCA 1981), the Fifth District declined to permit

similar testimony, saying "The relevancy of this evidence is the inference that the party who fails to call an expert is covering up harmful evidence or concealing bad facts." 407 So.2d at 940. The

Fourth District, however, has limited Sun Charm to consulting experts in Broward County v.

Cento, 611 So.2d 1339 (Fla. 4th DCA 1993), permitting the plaintiff there to refer to the expert as

"the County's doctor," and found no error in the state's mention of the fact its fingerprint expert was previously retained by the defense in Williams v. State, 397 So.2d 1049 (Fla. 4th DCA 1981 ).

Where here, the state listed the Medical Examiner witnesses, disclosed their reports, and permitted them to be deposed by the defense, the defense must have been permitted to let the jury hear the truth, that the state initially contacted each Medical Examiner.

THIS COURT MUST ARREST THE JUDGMENT OR ORDER A NEW TRIAL.

Well before trial began, the defense brought to this Court's attention the profound

deficiency of the Information in this case in its Motion for a Statement of Particulars. As we

pointed out then, and reiterate now: the Sixth and Fourteenth Amendments require that a charging

document in a criminal case state the elements of the offense charged with sufficient clarity to

apprise the defense of what it must defend against. Russell v. United States, 369 U.S. 749, 763,

769 (1962). Article I, section 16 of the Florida Constitution contains a similar safeguard. Due

process also requires such definiteness to prevent the jury from being instructed on an uncharged theory, see Tarpley v. Estelle, 703 F.2d 157 (5th Cir. 1983), and the prosecution and courts from

11 adopting one theory at trial and another on appeal. See Cole v. Arkansas, 333 U.S. 196 (1948). See

also Ring v. Arizona, 536 U.S. 584 (2002). On appeal,"[ a]n information is fundamentally defective

only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R.Crim. P. 3.140; State v.

Dilworth, 397 So.2d 292 (Fla.1981); Bradley v. State, 971 So.2d 957 (Fla. 5th DCA 2007),

approved, 3 So.3d 1168 (Fla.2009)." Delgado v. State, 43 So. 3d 132, 133 (Fla. 3d DCA 2010).

Mr. Raja thus brought the troubling vagueness and inconsistency of the Amended Information to the Court's attention before trial, but the Court denied the motion.

Nothing changed from the evidence presented and arguments made by the state at trial. It

is still not possible to determine exactly what theory of conviction the state is proceeding on for

each count. And if the state cannot articulate its theory, how is it possible the jurors could have

agreed on a single theory for each conviction? There could not have been a unanimous vote for a

single theory on either count.

This is also a case in which there are truly inconsistent verdicts for each count. "True

inconsistent verdicts" are not permitted. Fayson v. State, 698 So.2d 825 (Fla.1997). True

inconsistent verdicts occur when one count negates a necessary element for a conviction on another

count. Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983). How could there be both an

intentional attempted murder and a completed non-intentional manslaughter? There could not be.

A new trial is required.

Stated another way, the evidence at trial was that there were three shots fired in the first volley, and three shots in the second volley. The state's argument was that the fatal shot came from the second volley. Ifthe jury believed that the attempted murder arose from the first volley, it is

inconsistent that an intentional act occurred in the first volley, and a culpably negligent act

12 occurred in the second volley. On the other hand, if the jury believed that the attempted murder,

an intentional act, occurred during the second volley, and the manslaughter, a non-intentional act,

also occurred in the same second volley, the verdicts on the manslaughter count and the attempted murder count are inherently inconsistent.

THIS COURT MUST ENTER AN ACQUITTAL ON BOTH COUNTS.

The evidence was insufficient or insufficiently weighty to permit conviction on either count.

The defendant here challenges both the sufficiency and the weight of the evidence as to

both counts: "Motions for judgment of acquittal and motions for new trial are decided under

different standards. Compare Fla. R. Crim. P. 3.380(a) (directing a court to enter a judgment of

acquittal in response to a defense motion when "the court is of the opinion that the evidence is

insufficient to warrant a conviction") with Fla. R. Crim. P. 3.600(a)(2) (directing a court to grant

a new trial if "[t]he verdict is contrary to law or the weight of the evidence"). While the former tests the sufficiency of the evidence, the latter requires the trial court to weigh the evidence and

determine credibility just as a juror would. See Fergien [v. State], 79 So.3d [907] at 908 [(Fla. 2d

DCA 2012)]." Bell v. State, 248 So.3d 208, 209 (Fla. pt DCA 2018).

Acquittal on both counts must be granted where the state failed to rebut a prima fade case of self defense. During its case in chief, the state introduced Officer Raja's sworn walk-through statement, which unquestionably sets forth a prima facie case of justifiable use of deadly force. The state

failed to rebut the defense, so post-trial acquittal must be granted. While the appellate caselaw is necessarily a review after a defendant's testimony, the same principles apply here, where the sworn

defense version of the facts was presented by the state during its case in chief. As the Florida

Supreme Court recently recounted in Williams v. State, -- So. 3d -- , No. SC16-2170, 2019 WL

336900 (Fla. Jan 4, 2019):

13 In order to establish a prima facie case of self-defense, a defendant must show that he ( 1) was attacked in a place where he had a right to be, (2) was not engaged in any unlawful activity, and (3) reasonably believed it was necessary to use force to prevent death or great bodily harm. See Leasure v. State, 105 So.3d 5, 13 (Fla. 2d DCA 2012) (citing § 776.013(3), Fla. Stat. (2008) ). However, the jury is not required to accept the defendant's version of the facts and in fact "must consider the probability or improbability of the defendant's credibility in light of the circumstances established by other evidence." Leasure, 105 So.3d at 14 (citing Darty v. State, 161 So.2d 864, 872 (Fla. 2d DCA 1964); Teague v. State, 390 So.2d 405, 406-07 (Fla. 5th DCA 1980) ).

Slip op. at 3. All ofthese factors were established in Officer Raja's sworn walk-through statement.

And, once Raja "presented a prima facie case of self-defense, it was necessary for the State to refute his claim beyond a reasonable doubt." Ibid. Accord, Fowler v. State, 921 So.2d 708, 711

(Fla. 4th DCA 2006))(reversing denial of self defense motion for judgment of acquittal: "We recognize that the question ofwhether a defendant committed a homicide in justifiable self-defense

is ordinarily one for the jury. Id. However, when the State's evidence is legally insufficient to rebut the defendant's testimony establishing self-defense, the court must grant a motion for judgment of

acquittal."). Since the state did not rebut the sworn defense explanation, it has failed to show an

absence of self defense beyond a reasonable doubt, and the motion for renewed judgment of

acquittal must be granted.

Insufficient evidence of attempted first degree murder.

There is a complete lack of evidence of premeditation to support the conviction of

attempted first degree murder. The state's theory of prosecution of the counts has changed over time. At deposition, its lead detective testified the attempted murder actions were the shots that missed. By the time ofclosing argument, the prosecutor alternated between arguing the fatal bullet was shot essentially where Mr. Jones was found, and after Mr. Jones was shot in both arms, to the

prosecutor telling the jury they didn't even have to believe that theory as attested to by its witness

Dr. Juste.

14 Apparently, the state's theory of prosecution on this count was that the defendant shot at the decedent after knowing the decedent had dropped his firearm, so according to the state, these

shots necessarily must have occurred after the decedent had passed the location where the firearm was found. The state's evidence also was that the fatal shot constituting the manslaughter charge

occurred within yards of where the decedent's body was found, which was also past the location where the decedent had dropped his firearm. Thus, as illustrated in the state's closing argument, the state contended that the shots that struck the decedent in the arms (the attempted murder count)

occurred after the decedent dropped his firearm and before he received the fatal shot (the manslaughter count). It is illogical and inconsistent that two of these shots are considered to be

premeditated attempts to commit murder, while one of them was not premeditated, but "culpably negligent." Thus, there was insufficient evidence to support the attempted murder count.

Lack of proof of an essential element of manslaughter by culpable negligence.

To prove manslaughter, the state must show "[t]he negligent act or omission must have

been committed with an utter disregard for the safety ofothers. Culpable negligence is consciously

doing an act or following a course of conduct that the defendant must have known, or reasonably

should have known, was likely to cause death or great bodily injury." Florida Standard Jury

Instructions in Criminal Cases 7.7 Manslaughter. The state's proof does not meet this element.

The Standard Jury instruction for manslaughter reads in part:

I will now define "culpable negligence" for you. As I have said, every person has a duty to act reasonably toward others. Ifthere is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard ofhuman life, or ofthe safety ofpersons exposed to its dangerous effects, or such an entire want ofcare as to raise a presumption ofa conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

15 The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

Florida SJI 7. 7.

The State failed to prove culpable negligence, which is consciously doing an act or

following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury. Id. The two affirmative elements of the

offense ofManslaughter are (1) the killing; and (2) a causative link between the death ofthe victim

and the act, procurement, or culpable negligence of another. Cunningham v State, 385 So. 2d 721

(Fla. 3rd DCA, 1980). Courts have held that in addition to establishing causation in fact, the State must prove that the defendant's conduct was the legal or proximate cause ofthe harm at issue. Tyus

v. State, 845 So.2d 318, (Fla. 1st DCA 2003) quoting Eversley v. State, 748 So.2d 963, 966

(Fla.1999). The two questions that must be answered in establishing legal causation are: (1) whether the prohibited result ofthe defendant's conduct is beyond the scope ofany fair assessment

of the danger created by the defendant's conduct and (2) whether it would be otherwise unjust,

based on fairness and policy considerations, to hold the defendant criminally responsible for the

prohibited result. Tyrus at 320.

In the civil context, a plaintiff must first show that the constitutional tort was a cause-in­

fact of the injuries and damages claimed. To establish cause-in-fact, the plaintiff must show that

except for the constitutional tort, such injuries and damages would not have occurred. Id. Secondly,

a plaintiff must show that the constitutional tort was the legal or proximate cause of the injuries

and damages claimed. An act or omission is a legal or proximate cause of a plaintiffs injuries or

16 damages if it appears from the evidence that the injury or damage was a reasonably foreseeable

consequence of the act or omission. Jackson v Sauls, 206 F.3d 1156 (I Ith Cir 2016)

The State suggested Raja's conduct of (1) driving around the median (2) stopping his white unmarked van perpendicular to Jones' vehicle (3) exiting without his police vest and (4) allegedly not identifying himself as a police officer is reckless, wanton, indifferent, flagrant, and grossly

careless and the legal or proximate cause of Jones' death. That is, that by (1) driving around the median (2) stopping his white unmarked van perpendicular to Jones' vehicle (3) exiting without his police vest and (4) allegedly not identifying himself as a police officer it was reasonably

foreseeable that a deadly force encounter would ensue. The facts in evidence fail to establish that

Raja should knew of reasonably should have known that the deadly force encounter would occur.

What was more likely by Raja's actions was a traffic crash due to the manner in which he parked the van.

Raja's conduct is unlike cases where "course of conduct" has been identified.In Tillman v

State, the Defendant was seated close to the victim playing with a gun. Tillman v State, 842 So. 2d

922 (Fla. 2nd DCA 2003.) Tillman never checked to see ifthe gun was loaded while playing with the gun and shot and killed the victim. Id. at 927. In Navarro v State, the defendant while test firing

a gun shot and killed his girlfriend. Navarro v State, 433 So. 2d. 1101 (Fla. 3rd DCA 1983).

Both Tillman and Navarro were said to have some experience and training with firearms.

Both cases involve a defendant whose conduct included the use and handling of a deadly weapon.

In both cases the defendant was improperly manipulating the firearm. In both cases the result of the conduct caused the outcome one would expect if something went wrong. The fact that they

both had training in the handling of firearms might be relevant based on those circumstances when

evaluating the conduct and tragic result. But in this case the conduct alleged to be improper did

17 not involve misuse of a firearm, nor did it involve any activity that anyone could reasonably

consider gross, flagrant; or that anyone must have known, or reasonably should have known, was

likely to cause death or great bodily injury.

In Brinkley v State, the defendant was charged with Manslaughter by Culpable Negligence.

Brinkley v State, 874 So. 2d 1199, (Fla. 5th DCA 2004) In Brinkley, the defendant shot and killed his live-in partner's adult daughter, thinking she was a burglar. Id. at 1201. The Court held the

course of conduct ofthe defendant was such that the question ofreasonable fear on the part ofthe

defendant was a question for the Jury. Id. at 1202. The conduct included evidence the defendant

did not announce himself or try to give any warning; the defendant was aware that his roommate's

daughter frequently stayed at her mother's home; that his roommate's daughter did not usually call before coming over; and it was not unusual for the daughter to come over around 1:00 or 2:00 a.m.

Id. The conduct also included evidence the defendant told police that he thought that he "had a

good one," and that he previously told his roommate that his philosophy was to "shoot first and

ask questions later." Id. None ofthose facts were shown in the case at bar.

In Ramos, the Court held that evidence of past neglect and indifference was relevant to

show Ramos acted wantonly and recklessly on a continuous basis, exhibiting a pattern that she was indifferent to the dangerous and ultimately deadly consequences ofher actions. Ramos v State,

89 So. 3d 1119 (Fla. 1st DCA 2012). The Court also held that the repeated close calls established

a gross and flagrant violation ofher duty of care. Id. at 1122. Again, these facts are not even close to those here.

In Sapp, the defendant was snorting cocaine, taking Xanax, and playing with a gun. Sapp

v State, 913 So. 2d 1220 (Fla. 4th DCA 2005). The stage was certainly set there for someone to

get shot. In Dolan, the defendant's girlfriend came home with another man. Dolan v State, 85 So.

18 2d 139 (1956). Dolan armed himself and fired one round into the wall, showing off. Id. Dolan then went outside armed with the firearm and confronted the new boyfriend, setting the stage for

someone to get shot. Id. In McBride, the defendant was drunk and brandishing a firearm;

unsurprisingly, someone got shot. McBride v State, 191 So. 2d 70 (Fla. 1st DCA 1966). The case

at bar is utterly distinguishable.

Even if Officer Raja (1) drove around the median (2) stopped his white unmarked van perpendicular to Jones' vehicle (3) and exited without his police vest, none of those actions

independently or in combination could be considered reckless, wanton, indifferent, flagrant,

grossly careless or the legal or proximate cause of Jones' death. The conduct of Officer Raja has no causal connection to, and is not the legal or proximate cause of, the deadly force encounter.

Denial of this motion would violate the defendant's rights to present witnesses on his

behalf, to due process and a fair trial under the Sixth and Fourteenth Amendments to the United

States Constitution, Article 1, sections 9 and 16, Florida Constitution, and Florida law.

I HEREBY CERTIFY that a true copy hereof has been electronically provided to BRIAN FERNANDES, ESQ., ([email protected]), Office of the State Attorney. ADRIENNE ELLIS, ESQ., ([email protected]), and ALEXIA COX, ESQ., ([email protected]), Office of the 1 State Attorney, 401 North Dixie Highway, West Palm Beach, FL 33401 on this 18 h day ofMarch, 2019. Respectfully submitted,

RICHARD G. LUBIN, P.A. 707 North Flagler Drive West Palm Beach, FL 33401 Telephone: 561-655-2040 [email protected]

By: /s/ Richard G. Lubin RICHARD G. LUBIN, ESQ. Fla. Bar No. 182249

19 SCOTT N. RICHARDSON, P.A 1401 Forum Way, Suite 720 West Palm Beach, FL 33401 561-471-9600 561-471-9655 FAX [email protected]

By: Isl Scott N Richardson SCOTT N. RICHARDSON, ESQ. FLA. BAR NO.: 266515

RALPH E. KING, III Palm Beach County PBA 2100 North Florida Mango Road West Palm Beach, FL 33409 Telephone: 561-689-3745 Facsimile: 561-687-0154 [email protected]

By: Isl Ralph E. King RALPH E. KING, ESQ. Fla. Bar No.90473

STEVEN H. MALONE Fla. Bar No. 305545 707 North Flagler Drive West Palm Beach, FL 33401 Telephone: 561-805-5805 [email protected]

By: Isl Steven H. Malone STEVEN H. MALONE, ESQ

20